Clearly, this involves taking Governments to court over the constitutionality and legality of laws, or appealing against the powers used in a specific case. Some interesting cases have already arisen. Countless organisations in the U.S. have appealed to the courts over such practices as warrantless interception of communications, access to library borrowing records, access to internet service provider records, military tribunals and detention without trial. Courts in other countries have found that some practices are too problematic: in Taiwan the Supreme Court froze the implementation of a national fingerprinting system until the full case on the system could be heard by the court in full; in Japan one court found that the Jukinet ID system was unconstitutional; and there are indications that the REAL-ID Act will be taken to the courts by a number of organisations.
Not all cases need to have successful results in order to have proved a useful strategy. Liberty, the human rights organisation in the UK, took a case to the courts demanding the repeal of the policy that permits arbitrary stop and searches at protests. Though the case was unsuccessful, in the course of the case the police divulged that since February 2001 greater London is a 'stop and search' zone. Another unsuccessful case pursued by Liberty involved an appeal against the collection of fingerprints and DNA upon arrest for permanent retention, regardless of charge or conviction. The appeal continues in the court system; that there is finally a debate regarding these measures is a positive step forward.
I wish I could say that the use of the legal system is a common or wide-spread practice across countries. The reality is that this strategy only emerges in specific circumstances and usually only in the richer countries. The European Court of Human Rights has not yet ruled on a case involving terrorism in the post-2001 environment; and I have not heard any indications of cases reaching this level. In fact, when we considered taking the issue of data retention to the courts we were advised that this could be a long and costly process, taking perhaps between 8 and 15 years.